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Gallego v. Garcia

June 9, 2010

FRANCISCO JOSE GALLEGO, JR. AND ROSA EUGENIA GALLEGO AS PERSONAL REPRESENTATIVES OF THE ESTATE OF FRANCISCO JOSE GALLEGO GARCIA, PLAINTIFF,
v.
HECTOR MANUEL GALLEGO GARCIA, ROSA MARIA GARCIA VASQUEZ AND PROMOTORA INCO, S.A. DE C.V., DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING MOTION TO DISMISS FOR FORUM NON SR., CONVENIENS

[Doc. No. 73]

On June 29, 2007, Plaintiffs Francisco Jose Gallego, Jr. ("Francisco Jr.") and Rosa Eugenia Gallego ("Rosa Eugenia"), as personal representatives of the Estate of Francisco Jose Gallego Garcia, Sr. ("Estate"), filed the instant action alleging fraud and other state law torts based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(2). (Doc. No. 1.) On March 15, 2010, they filed a Second Amended Complaint ("SAC"). (Doc. No. 71.) On April 1, 2010, Defendant Hector Manuel Gallego Garcia ("Hector Manuel") filed a motion to dismiss for forum non conveniens. (Doc. No. 73.) On April 23, 2010, Plaintiffs filed their opposition to the motion (Doc. No. 77), and on May 3, 2010, Defendant timely replied (Doc. No. 80). Having considered the briefs submitted by the parties and for the reasons set forth herein, the Court GRANTS Defendant's motion to dismiss for forum non conveniens.

BACKGROUND

This case arises out of transfers of assets once owned by Francisco Jose Gallego Garcia, Sr. ("Francisco Sr." or "Decedent"). Francisco Jr. is the son of the Decedent and Rosa Eugenia is the Decedent's wife. Together, they bring this action on behalf of Francisco, Sr.'s Estate to recover damages for what they assert were invalid transfers of Decedent's interests in various Mexican corporations. On September 3, 1995, Decedent died intestate in San Diego, California at the age of 53. (SAC at ¶ 18.) Prior to his death, Decedent held interests in various Mexican corporations. (Id. at ¶¶ 12--14.) In early 1995, Decedent was diagnosed with advanced lung and hepatic cancer. (Id. at ¶ 15.) Plaintiffs allege that while Decedent's health and mental abilities were compromised due to illness, he transferred his interests in various Mexican corporations to Defendants, and that Defendants engaged in a series of actions that led to the transfers with "the intent of systematically depriving Plaintiffs of their rights as legal heirs in the [D]ecedent's estate and more specifically to the Decedent's ownership rights...." (Id. at ¶ 22.)

Plaintiffs' original complaint named Hector Manuel, Decedent's brother, as the lone defendant. On March 24, 2008, the Court issued an order dismissing the complaint for lack of subject matter jurisdiction because Plaintiffs failed to allege facts necessary to establish that the parties were diverse as required by 28 U.S.C. § 1332. (Doc. No. 15.) On April 28, 2008, Plaintiffs filed a First Amended Complaint ("FAC"). (Doc. No. 23.) On May 15, 2008, Defendant again moved to dismiss, contending:

(1) no diversity of citizenship existed to support subject matter jurisdiction; (2) insufficient service of process; (3) lack of personal jurisdiction; and (4) improper venue under the doctrine of forum non conveniens. (Id.) On December 23, 2008, the Court issued an order denying Defendant's motion to dismiss on all grounds. On January 2, 2009, Defendant filed an Answer to the FAC (Doc. No. 43), and the parties proceeded with discovery. On March 15, 2010, Plaintiffs filed a Second Amended Complaint ("SAC"). (Doc. No. 71.) In addition to adding, deleting, and changing various factual allegations, Plaintiffs added the Decedent's mother, Rosa Maria Garcia Vasquez ("Rosa Maria"), and Promotora Inco, S.A. de C.V., a Mexican corporation, as named defendants to this action. On April 1, 2010, Defendant Hector Manuel filed another motion to dismiss, solely on grounds that this Court is the improper venue for this action under the doctrine of forum non conveniens. (Doc. No. 73.)

LEGAL STANDARD

The doctrine of forum non conveniens is a judicial doctrine that permits a federal district court to dismiss an action on the ground that "a court abroad is the more appropriate and convenient forum for adjudicating the controversy." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 127 S.Ct. 1184, 1188 (2007). It is an exceptional tool to be applied sparingly, and thus requires the moving party to make a "clear showing of facts which establish such oppression and vexation of a defendant as to be out of proportion to plaintiff's convenience, which may be shown to be slight or nonexistent." Ravelo Monegro v. Rose, 211 F.3d 509, 514 (9th Cir. 2000). Where the action has been filed by a U.S. Citizen, defendant has a very heavy burden to satisfy. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255--56 (1981); Sinochem, 127 S.Ct. at 1191. A party moving to dismiss based on forum non conveniens bears the burden of showing: (1) there is an adequate alternative forum; and (2) the balance of private and public interest factors favors dismissal. Sinochem, 127 S.Ct.at 1190.

ANALYSIS

1. Adequate Alternative Forum

The Court's first inquiry is whether there is an alternative forum available for Plaintiffs to assert their claims. In determining whether an alternative forum is available, the Court looks at whether the alternative forum would have jurisdiction to hear the case, and whether the defendant is amenable to service of process there. See Sinochem, 127 S.Ct. at 1190; Piper Aircraft, 454 U.S. at 254. In Defendant's initial motion to dismiss, the Court denied Defendant's motion to the extent it was based on the forum non conveniens doctrine solely because Defendant had failed to address the availability of Mexico as an alternative forum in any detail. (Order [Doc. No. 42] at 9:19--20.) In reaching this conclusion, the Court considered the fact that a Mexican court had already declined to exercise jurisdiction over the probate of the Estate. (Id. at 9:22-24(citing (Pls.' Opp. [Doc. No. 30] at 14:10--25).)

In his renewed motion, Defendant contends that Mexico is not only an adequate alternative forum for Plaintiffs to assert their claims, it is the better forum. Defendant asserts that the civil courts of Mexico would be able to assert jurisdiction over Plaintiffs' claims were they to file them in Mexico. In support of his position, Defendant provides the sworn declaration of Fernando Salgado Diaz, a Mexican attorney with more than 30 years of experience in civil litigation matters in Mexico, including in the areas of business, real estate, and probate. (Diaz Decl. at ¶ 2.) Mr. Diaz demonstrates to the Court's satisfaction that he has sufficient knowledge and experience to opine on the availability of Mexico as an alternative forum for this litigation. Mr. Diaz states that Mexican courts "regularly hear disputes over ownership of assets within Mexico, including but not limited to real property, business interests and stock ownership." (Id. at ¶ 6.) Mr. Diaz states that because Plaintiffs are legal representatives of the Estate, they could initiate a legal action in Mexico asserting claims similar to those asserted here. (Id.) Mr. Diaz also states that if Plaintiffs were successful in their claims, a Court could "award damages to the extent they have been deprived of the profits due to them, if any, from the operation of those businesses." Mr. Diaz also offers a brief description of Mexico's legal system, which would provide Plaintiffs a method of appealing any adverse judgment. (Id. at ¶ 7.) Defendant also states that he would accept service of process on the matters raised in the SAC in any judicial proceeding that Plaintiffs initiate in Mexico. (Hector Manuel Decl. [Doc. No. 80-1] at ¶ 2.)

Rather than addressing the fundamental considerations of an alternative forum, i.e. jurisdiction and acceptance of process, Plaintiffs argue only that Mexico is a less favorable forum for their case. In support of their position, Plaintiffs offer the declaration of Jorge de Hoyos. Defendant objects to Mr. Hoyos's declaration on grounds that it is neither a sworn affidavit nor a declaration under28 U.S.C. § 1746. The Court agrees that the declaration is of no evidentiary value because it is not accompanied by a statement that Mr. Hoyos made the statement under oath, or that he signed the declaration under penalty of perjury. See 28 U.S.C. § 1746. Accordingly, the Court SUSTAINS Defendant's objection.*fn1 The Court notes, however, that even if the Court found Mr. Hoyos's declaration sufficient in this regard, it would have found Mr. Hoyos's opinion to have little value based on the fact that Mr. Hoyos does not state what his area of practice is or how he is otherwise qualified to speak to the claims set forth in Plaintiffs' SAC and whether they could properly be asserted in a Mexican court. The Court notes that Plaintiffs also rely on the Declaration of Mexican attorney Virgilio Rincon.*fn2 Although Mr. Rincon's declaration is not fatal for the same reasons as Mr. Hoyos's declaration, the Court ultimately finds his declaration unpersuasive. Mr. Rincon states that because the Mexican courts declined to exercise jurisdiction over the probate of Decedent's Estate, Plaintiffs will be precluded from bringing the substance of this action there. It does not appear to the Court how the probate of Decedent's estate would have any effect on whether Plaintiffs can assert their claims regarding invalid transfers of assets in Mexico. As Mr. Diaz states, Plaintiffs, who have been appointed legal representatives of the Estate since the initial Mexican decision, would now have standing to assert their claims in Mexico, thus giving the Mexican court jurisdiction to hear the case. Plaintiffs offer no evidence to the contrary. For these reasons, the Court finds no impediment to the ...


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